Curtis Wayne Hodges v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-4672
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CURTIS WAYNE HODGES,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.
December 27, 2018
PER CURIAM.
In this appeal from his resentencing following the revocation
of probation, Appellant raises three claims: (1) the trial court erred
in denying his motion to dismiss for lack of jurisdiction because his
probation had expired; (2) the trial court committed reversible
error in finding that he violated his probation by leaving his county
of residence and changing his approved residence without his
probation officer’s consent; and (3) the trial court erred in not
specifying the conditions violated in the revocation order. For the
reasons that follow, we affirm in part, reverse in part, and remand
for further proceedings.
I.
Appellant moved unsuccessfully to dismiss for lack of
jurisdiction because his probation expired, asserting that the filing
of an affidavit and issuance of an arrest warrant for technical
violations of probation did not toll the probationary period. In
doing so, he relied on Mobley v. State, 197 So. 3d 572 (Fla. 4th DCA
2016), in which the Fourth District explained:
Section 948.06(1)(f) is clear that a warrant under section
901.02 is required in order for the probationary period to
be tolled (except when one of the other two alternatives
are applicable, as is not the case here). Section 901.02 in
turn requires that the warrant be for a “crime.” Here, the
warrants issued were for violations of probation based on
the failure to make restitution payments and a payment
for drug testing. These are not “crimes.” The warrants
were therefore not issued under section 901.02, and
Appellant’s probation was never tolled.
Id. at 574. However, in Williams v. State, 202 So. 3d 917 (Fla. 4th
DCA 2016), the Fourth District held that when a defendant
absconds from probation, an exception to its holding in Mobley is
triggered, and the probationary period is tolled until the defendant
is once more placed under probationary supervision.
More recently, the Second District explained that “our
common law recognizes that a probationer’s absconsion from
supervision during his probationary term, apart from section
948.06(1)(f)’s tolling provision, automatically tolls his term.”
Canchola v. State, 43 Fla. L. Weekly D2092, D2093 (Fla. 2d DCA
Sept. 7, 2018). The trial court denied Appellant’s motion to dismiss
on the ground that Appellant had been charged with absconding
from supervision, which tolled the running of Appellant’s
probation.
At the probation violation hearing, Appellant’s probation
officer testified that Appellant’s mother came to his office and
informed him that Appellant had not been home in a week.
Appellant’s mother acknowledged at the hearing that Appellant
had not been at her home for a week and that she did not know his
whereabouts at that time. Thus, there was competent, substantial
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evidence that Appellant had absconded for at least a week during
his probationary term. If tolled for the week that he had
absconded, Appellant’s probation would have expired on June 16,
2017. It appears undisputed that Appellant was arrested on June
15, 2017, for criminal charges in Duval County pursuant to a
warrant under section 901.02. Because Appellant was arrested on
this warrant before his probation expired, his probation was tolled
by operation of section 948.06(1)(f). * Therefore, the trial court
properly denied Appellant’s motion to dismiss.
II.
The trial court found that Appellant violated his probation by
leaving Nassau County, his county of residence, without the
consent of his probation officer. The affidavit alleged that
Appellant violated this condition when he left Nassau County and
entered Duval County on March 8, 2017.
However, no evidence was presented that Appellant was in
Duval County on March 8, 2017. The revocation of probation based
on conduct not alleged in the affidavit constituted fundamental
error and did not require a contemporaneous objection to preserve
the claim for appellate review. Perkins v. State, 842 So. 2d 275, 277
(Fla. 1st DCA 2003). Therefore, the trial court erred in finding that
Appellant violated his probation by leaving his county of residence
without his probation officer’s consent based on acts not charged
in the violation of probation affidavit. See T.T. v. State, 82 So. 3d
1019 (Fla. 4th DCA 2011) (reversing the trial court’s finding that
T.T. violated his probation where the affidavit alleged that he
violated probation by skipping school or being tardy on specific
dates, but no evidence was presented that he violated his probation
on those dates); Cherington v. State, 24 So. 3d 658, 660-61 (Fla. 2d
DCA 2009) (holding that the trial court erred in finding a violation
of probation where Cherington admitted to possessing and using
cocaine on some undetermined date rather than on the date
*Effective July 1, 2017, the legislature amended section
948.06(1)(f) to remove the requirement that the warrant be issued
under section 901.02. Ch. 2017-115, §§ 9, 20, Laws of Fla. This
amendment is not applicable here since Appellant’s probation
expired before July 1, 2017.
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specified in the affidavit of violation); Perkins, 842 So. 2d at 277
(holding that the trial court’s finding that Perkins violated his
probation by absconding during the months of May through
November constituted fundamental error where the affidavit did
not allege that he had absconded during those months); Johnson
v. State, 811 So. 2d 749 (Fla. 2d DCA 2002) (holding that the trial
court could not find that Johnson violated his community control
by being absent from his approved residence on April 11, 2000,
where the affidavit alleged that Johnson failed to remain confined
to his approved residence on March 31, 2000).
The trial court further found that Appellant violated his
probation by changing his residence without the consent of his
probation officer. Appellant’s probation officer testified that he
filed this charge based solely on what Appellant’s mother told him
during a meeting at his office. Such hearsay alone is not sufficient
to establish that Appellant changed his residence in the absence of
nonhearsay evidence to corroborate it. See Rutland v. State, 166
So. 3d 878 (Fla. 1st DCA 2015); Webb v. State, 154 So. 3d 1186,
1188 (Fla. 4th DCA 2015); Cito v. State, 721 So. 2d 1192 (Fla. 2d
DCA 1998). Although Appellant’s mother testified at the probation
violation hearing, she denied that Appellant had changed his
residence. At most, she conceded that Appellant had been absent
from the residence for a week and that she did not know his
whereabouts at that time.
A probationer’s absence from an approved residence for a brief
time during which the probationer’s location was unknown would
not support a finding that the probationer violated a condition of
probation by changing his residence without first procuring the
consent of his probation officer. Tobias v. State, 641 So. 2d 194 (Fla.
4th DCA 1994); accord Gauthier v. State, 949 So. 2d 326, 326-27
(Fla. 5th DCA 2007); Johnson v. State, 668 So. 2d 240, 241 (Fla.
1st DCA 1996). Therefore, the trial court erred in finding that
Appellant violated his probation by changing his residence without
his probation officer’s consent.
However, Appellant was also charged with violating his
probation by committing new law violations in Duval County,
which would support the revocation of his probation, if proven. The
trial court’s oral findings focused on the allegations that Appellant
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violated his probation by leaving his county of residence and
changing his approved residence without his probation officer’s
consent, but the prosecutor was able to coax what appears to be a
further oral finding that Appellant violated his probation by
committing the new law violations in Duval County as an
accessory.
Given the somewhat ambiguous nature of the trial court’s oral
findings and the lack of any written findings, we reverse and
remand with directions that the trial court make an express
determination whether Appellant’s probation should be revoked
based on the new law violations. See Manis v. State, 30 So. 3d 586(Fla. 5th DCA 2010).
III.
The trial court’s written order of revocation does not specify
the conditions of probation that were violated by Appellant. “If a
trial court revokes a defendant’s probation, the court is required to
render a written order noting the specific conditions of probation
that were violated.” King v. State, 46 So. 3d 1171, 1172 (Fla. 4th
DCA 2010). The State properly concedes that this case must be
remanded for entry of a written order specifying the conditions of
probation violated by Appellant. See Davis v. State, 218 So. 3d 507(Fla. 1st DCA 2017); Leggs v. State, 27 So. 3d 155 (Fla. 1st DCA
2010).
AFFIRMED in part, REVERSED in part, and REMANDED for
further proceedings.
MAKAR, OSTERHAUS, and JAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and Joel Arnold, Assistant Public
Defender, Tallahassee, for Appellant.
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Pamela Jo Bondi, Attorney General, and Frank Xavier Moehrle,
Jr., Assistant Attorney General, for Appellee.
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